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Friday, February 5, 1988

BRIEF ON THE MEECH LAKE ACCORD
February 5, 1988, THE SELECT COMMITTEE ON CONSTITUTIONAL REFORM OF THE LEGISLATIVE ASSEMBLY OF ONTARIO

I
shall review the amendments before you in their order in the Resolution
and then comment on some general issues that arise from the review or
have arisen in public discussion of the Meech Lake Accord.

Section 2

With
Section 2 as with all the proposed amendments the Legislative Assembly
must ask itself what the legal effect of the language wi1l be. It must
intend some legal effect by the language and be satisfied that
interpreted under the principles of statutory and constitutional
interpretation applied by the courts it will have that effect.

The
language of the proposed Section 2 is so general, evasive and
unprecedented that we can only speculate what its legal effect may be
over the long term. Passed into our fundamental law it amounts to a
blank cheque to the courts to tell Parliament and the legislatures what
they must and must not do beyond the specific language provisions of the
Constitution Act about
"the recognition that the existence of French-speaking Canadians,
centred in Quebec but also present elsewhere in Canada, and English
speaking Canadians, concentrated outside Quebec but also present in
Quebec constitutes a fundamental characteristic of Canada; and the
recognition that Quebec constitutes within Canada a distinct society."

Any effect of Section 2 on the Charter is only a small part of its importance. The Charter
itself is so obscure that it would be wrong to worry that Section 2
will weaken it. Under Section 2 the whole field of relations between
French and English Canada, the perennial theme of our history since the
16th century, is made subject to judicial review. Not only the errors
but the omissions of Parliament and the legislatures under whatever
theory of these matters may appeal to judges in generations to come will
be subject to their orders.

The
"affirmation" of the "roles" of Parliament and the legislatures in
subsections (2) and (3) is vague and evasive. Role is not a legal term.
Parliament and the legislatures have powers, rights, privileges and
jurisdictions at law. The failure to specify which they have with
respect to the "fundamental characteristic" and the "distinct society"
leaves open the question of what if anything they are to do about them.

In
informal discourse both "recognitions" may seem recognizing the
obvious. But what is obvious today may not be obvious tomorrow. If
English speaking Quebeckers choose to leave or to be assimilated in a
largely officially unilingual province the presence of English speaking

2

Canadians
in Quebec may no longer be a fundamental characteristic of Canada. What
are Parliament and the legislatures to do about it? If, as is the case
despite de facto or de jure
official bilingualism in Ontario and the other provinces with a
significant population of French speaking Canadians, French speaking
Canadians continue to assimilate, what are Parliament and the
legislatures to do about that? The "fundamental characteristic" is to be
preserved but Quebec's distinctness is to be promoted. Quebec's role in
preserving the "fundamental characteristic" already conflicts with its
role in promoting its distinctness. The cross party consensus in Quebec
is in favour of promoting its distinctness and preserving its Frenchness
by unilingualism. Unilingualism must tend to reduce the English
presence in Quebec and thus detract from this aspect of the "fundamental
characteristic".

A
constitution, particularly one as difficult to amend as Canada's now is
and may soon be, is not made for the near term. The evolution of the
French and English speaking communities in Quebec and the rest of Canada
over the medium to long term is unpredictable and judgements on what
should be done about it will evolve if anything more radically and more
unpredictably. Whether the proposed section 2 is to be read as futilely
insisting on the preservation of the exact status quo,
the exact proportions of English speaking and French speaking Canadians
across the country, or as only vaguely setting a direction, it will
operate as the subjection of the Parliament and the legislatures to the
general and indefinite supervision of the courts in place of the
democratic resolution of such issues as may arise.

The
legal effect of this section must be to pass power from Parliament and
the legislatures to the courts. It assures no specific outcome and may
lead to dangerous conflicts between the courts and our democratic
institutions. The power to strike down democratically approved laws
given to the courts by the Charter
can be unsatisfactory. Whatever one thinks of the Morgantaler decision
it cannot be satisfactory that it results in a legal vacuum until
Parliament passes legislation consistent with it. It is a dangerous
extension of the power of the courts to commission them to require
Parliament or the legislatures to adopt laws in fulfillment of their
"roles" under Section 2. Unless it is entirely meaningless that is what
Section 2 does.

Section 25

A
bicameral parliament works only where the upper house will only rarely
reject or substantially amend measures passed in the lower house. The
government with the confidence of the majority of the House of Commons
must be able to pass any important legislation it considers advisable.
This is fundamental to responsible government in the United Kingdom,
Canada and the democratic Commonwealth.

If
the devolving of the power to nominate senators to the provincial
governments is to amount to anything more than sharing out patronage
plums it wi11 1ead to senators attempting to interfere with the national
government's legislative programme in the political interests of the
provincial governments that nominated them. This will weaken the
national government. which must be free to act within its jurisdiction
under the Constitution Act
without provincial interference. It dangerously increases the
possibility of a deadlock between the House of Commons and the Senate.
The limited power to overcome a deadlock by the appointment of extra
senators under s.26 will be seriously diluted by provincial leverage
through the power of nomination.

Quite
apart from the injury provincial nominations will do to parliament the
wording of the proposed Section 25 is objectionable. "Government of the
province" is an informal political phrase. Executive power in the
provinces is vested in the Lieutenant Governors and it is they who
should make any nominations. Naturally they will do so on the advice of
ministers responsible to the legislatures. Further it is the Governor
General who appoints senators and it is to her that names should be
submitted. There should be no reference to the Queen's Privy Council.
How is it to signify who is acceptable? Will it meet and vote? The
provision should simply say that the Governor General shall not appoint
anyone to the Senate whose name has not been submitted by the Lieutenant
Governor of the province. She will not have to appoint each person
whose name has been submitted and in deciding whether to appoint a
senator will, of course, act on the advice of ministers responsible to
Parliament.

The
requirement that senators only be appointed from persons whose names
have been submitted by the provincial governments will lead to friction
and impasses over appointments. In most cases no doubt appointments will
be worked out to the rough satisfaction of the provincial end national
governments. But that cannot always happen as governments with
conflicting political wills play a game of chicken, with a provincial
government threatening ever more unacceptable nominees and the national
government a prolonged vacancy. Relations between the national and
provincial governments will be poisoned and Senate appointments will
become a form of low comedy. As the courts become more free spirited in
the interpretation of the Constitution Act,
encouraged by its open language, they may become dangerously involved
in attempts to break impasses over appointments to the Senate.

Sections 95A-E

Nothing in the Constitution Act
as it stands prevents Parliament from passing legislation to
accommodate provincial wishes on immigration. The effect of the proposed
Sections 95A-E is to entrench in the Constitution Act
agreements between the national government and a provincial government
on immigration. They enable the national government to bind future
Parliaments indefinitely to an agreement with a provincial government on
immigration by simple majority resolutions of the House of Commons and
Senate. They will result in a damaging reduction of a basic power and
responsibility of a national government. As admission to any province is
admission to the whole of Canada immigration is essentially a national
concern in which the national government has always had paramountcy
since 1867. The provinces have historically played a role only in
recruiting and settling immigrants, a role now largely obsolete.

Subsection
95B(2) may be sufficient to protect the national interest in
immigration and at best may make the whole of Sections 95A-E
meaningless. But again it is a blank cheque to the courts to prescribe
the role of our national government in a basic field of national
concern.

Section
95 should not refer to the "Government of Canada" and "the government
of any province" as these are political and not legal phrases. What will
be legally effective under these proposed sections are the resolutions
of the Senate and House of Commons and the Legislative Assembly of the
province and the Governor General’s proclamation. Legislation, and
particularly constitutional legislation, should not refer the political
preliminaries that lead to any legal action. It is unnecessary and can
lead to unintended legal consequences.

Sections 101 A-E

The
entrenchment of the Supreme Court of Canada will make the organization
of final courts of appeal in Canada inflexible and subject to political
constitutional negotiation. Already before the Constitution Act 1982
the Supreme Court of Canada was severely burdened. Section l0lA will
make expansion or division of the court practically speaking impossible.

The
requirement that appointments to the Supreme Court of Canada be made
from nominees submitted by the government of Quebec for the three civil
law seats or the other provincial governments for the rest implies that
and is based on the presumption that the judges have represented and
will represent the interests of the government that nominates them. This
is a fundamental attack on the independence and freedom from bias of
the judiciary. There have never been any grounds for this presumption.
The entrenchment of provincial nominations to the Supreme Court of
Canada gives constitutional sanction to the theory that its judges
should serve the interests of the provincial governments and will damage
the authority of the court. Friction and impasses over appointments,
particularly from Quebec, are bound to occur and will acutely damage the
court. As with Senate appointments it is possible that the Court will
become involved in breaking impasses over appointments.

Again
references to provincial governments rather than Lieutenant Governors,
to the Minister of Justice and to the Queen's Privy Council for Canada
are wrong, and show that the drafters do not understand our
constitution.

Entrenchment
together with the vastly increased constitutional responsibilities of
the Court, practically all of whose time will likely be taken up in
making final decisions on constitutional cases that have worked their
way up to it or been directly referred to it, will result in the
separation of the Court from the whole body of inferior courts whose
work will remain a mix of "ordinary” cases at law on which they will
generally have the last word and constitutional cases on which they will
never have the last word. Its position as an almighty political court
above the law will both corrupt it (vide Acton) and injure its authority.

The
entrenchment of the Supreme Court of Canada in the constitution is a
particularly pure case of the craven emulation of American
constitutional arrangements. As we imitate the United States we should
note that respect for their Supreme Court has been greatly injured in
recent years and wi1l likely continue to decline.

Section 106A

It
is already objectionable that Parliament is paying for national
shared-cost programmes in areas of exclusive provincial jurisdiction
under the Constitution Act. Where a national programme is desirable the
provincial governments should give up jurisdiction and let taxing,
spending and responsibility rest all together with the national
government. If there are to be such programmes there is nothing to stop
the national and some provincial governments agreeing on opting out and
consequent financial arrangements. The proposed Section 106A will give
the provincial governments an automatic no cost option of opting out and
will require the courts to judge whether a province "carries on a
program[sic] or initiative that
is compatible with the “national objectives" and what "reasonable
compensation" for the opting out province should be. The involvement of
the courts in the detailed assessment of political programmes and
financial trade offs between the levels of government is wholly
unacceptable.

In
this proposed section the use of the political phrase "the Government
of Canada" is particularly inept. The Government of Canada has no money
except what Parliament votes it. It is Parliament that will have to
provide such "reasonable compensation" as the courts decide and this bad
provision, if it must pass, should say so.

Section 148

The
emergence of so called "First Ministers" conferences in the last 25
years as a major feature of national politics has already injured our
political culture and institutions. They have confused political
responsibility, distracted governments at both levels from their work
and seriously undermined the authority of the national government in its
own jurisdiction. Such meetings if not banned outright ought to be rare
and informal. To entrench them in the constitution is grotesque. The
Prime Minister and the provincial premiers are simply primus inter pares
ministers running committees of ministers responsible to their
respective Parliament and legislatures. Their place in the simple but
strong and profoundly good constitutional institutions developed in
Britain and the Commonwealth in the last three hundred years is entirely
inconsistent with their appearance as great sovereign princes regularly
meeting in solemn conclave to settle the nation's affairs. As has
probably happened with the measures before you this corruption of our
political culture and institutions has severely damaged the authority of
Parliament and the legislatures by presenting them with what are
effectively political fait accompli.

There
should be nothing for the "First Ministers" to meet about. If the
division of powers between a national and provincial governments can be
justified each should be able to carry on within its jurisdiction
undisturbed by the other with their civil servants occasionally in touch
to see that wires do not get crossed at the edges of their respective
jurisdictions.

Section 40

This
proposed section will encourage no cost opting out by provinces from
transfers of jurisdiction. Canada needs a stronger national government
and easy transfer of powers from the inflated provincial jurisdictions
to the national government. This provision will make transfers more
difficult. Again the courts are to decide what "reasonable compensation"
would be. This decision will be particularly difficult for the courts.
In the case of compensation for national programmes opted out of under
the proposed Section 106A some measure of financial compensation will be
available in the level of national spending on the programme opted out
of. With a transfer of jurisdiction compensation will depend on what is
done with the jurisdiction. The national government may choose to do
little, using the jurisdiction to keep the field free of regulation and
interventionist spending. The opting out province may keep the
jurisdiction to do just the reverse. The courts will be faced with
making impossible and politically charged judgements.

Section 41

The
requirement of unanimous agreement on amendment of any aspect of the
constitution puts the country in a constitutional straitjacket. The
addition of matters to this section with the already too onerous
requirements for other amendments in Sections 38 and 42 will give the
provincial governments an iron hold on the national government every
time constitutional change is necessary. The history of Meech Lake and
human politics means that this will lead to bargaining in which the
already over mighty provincial governments make demands on the national
government in exchange for their consent to amendments. With such a
prospect it may be better to regard the constitution as unamendable.

Section 50

The
requirement of annual constitutional conferences will perpetuate the
constitutional distractions of the last twenty years of Canadian
politics. I set out above how objectionable “First Ministers"
conferences are. It should be remembered that the conferences in 1864
that lead to Confederation were not of "First Ministers" but of
delegates of the respective legislatures. They met of course not to take
power for themselves out of a constitutional impasse but to give up
power to a new government and to build a nation, not to carve it up. The
whole course of the debates leading to Confederation should put to
shame those who have participated in the squalid proceedings leading to
the measures before you and who vainly and arrogantly claim to be new
Fathers of Confederation.

The
holding of annual constitutional conferences in the face of the near
impossibility of amending the constitution under the formulas in
Sections 38, 41 and 42 is idiotic. It will invite an endless
parade of lobbies to push not for the democratic redress of their
legitimate grievances but the further encumbering of the constitution
with vague, inflexible formulas to be interpreted by overburdened.
irresponsible and politicized courts. Every amendment achieved will have
to be bought at the cost of further weakening the national government.

We
need a moratorium on constitution making and time to get on with the
real business of government and to let the full extent of the damage
done in the last six years emerge.

Quebec

Meech
Lake, we are told, was necessary to get Quebec to "join the
constitution" or some equally meaningless phrase. There was no need to
have Quebec "join the constitution". The Constitution Act has full and unchallenged legal effect without the support of a resolution of the National Assembly of Quebec.

All Meech Lake does is buy a smile, of no legal effect, from Quebec. The price paid for a bought smile
is alway too high as a smile paid for is worthless. And as always
happens when Quebec makes demands, the other provinces cynically line up
to take what they can get with no thought of the injury they do the
nation.

It
is all for nothing. Who can suppose that when Quebec nationalism
resurges again in ten or twenty years time, as it has again and again
since 1759, we shall simply say "Meech Lake" and all will be well? Who
can suppose that when tomorrow's separatists are threatening they will
be daunted by the thought the their demands are subject to the veto of
Prince Edward Island?

Quebec
can "join the constitution" and smile on us because it knows that
whenever it calculates that Confederation or the threat of separation
alone are no longer profitable it can go its own way, with a strong
national government, already the strongest in Canada, and all the
Constitution Acts in both official languages you could pass in a century
if you gave your time to nothing else would not hold them up a minute.

The Courts

The Charter
has greatly burdened the courts with difficult and dangerous political
decisions. It can be argued that for the sake of fundamental rights and
freedoms, whose history is tied in with the development of our law, this
is satisfactory. It is another thing entirely to burden the courts further
with the settlement of purely political issues: the supervision of
relations between English and French Canada under Section 2, the
possible settlement of disputes over Senate and Supreme Court
appointments under Sections 25 and 10lB and C, the supervision of
immigration policy under Sections 95A-E, the assessment of national
programmes and objectives and compensation for opting out of them under
Section 106A and the assessment of compensation for opting out of
transfers of jurisdiction under Section 40. Courts are the wrong
institutions for the settlement of such questions. Their involvement in
them will politicize them. They cannot decide such questions
efficiently. They are irresponsible. For their proper work that is as it
should be. For political decisions it is unacceptable.

The "notwithstanding" provisions of Section 33 of the Constitution Act 1982 limit the irresponsibility of the courts for the larger part of the Charter
provisions. Those provisions were thought necessary in 1982 to preserve
parliamentary sovereignty, which is fundamental to our democratic
government. They do not and cannot apply to the dangerous political
powers given the courts by Meech Lake. With amendment of the
constitution near impossible the irresponsibility of the courts is
nearly perfect.

National and Provincial Governments

The
provincial governments in Canada were established and continued as
simple instruments of the public good easily adapted or put aside as
circumstances required. Such was their history up to 1867. A hundred
years of constitutional stability and the settling of political
interests in the existing governments gave them a false appearance of
permanence. The constitutional wrestling of the last 20 years has lead
to the provincial governments becoming de facto
sovereignties. They have consistently sought increased power without
regard for the national interest from the politician's instinct to seek
more power wherever he can most easily lay his hand on it.

We
can either trust ourselves from sea unto sea to run our public affairs
together or we cannot. If we can, our democratically elected national
parliament should be free to govern the whole country without provincial
or judicial interference. If we cannot, the answer to our mistrust will
not be to tie down and make impotent our national parliament, but to
accept that we must separate. I do not believe Canadians want either
outcome but as our constitution is remade by bargaining between ten
provincial governments and a solitary national government to speak for
the national interest they will get an impotent national government and
finally the logical sequel in separation.

All
the provincial governments have gone into this latest bout of
constitution making looking for greater power at the expense of the
national government under the cloud of "national unity" and “bringing in
Quebec" rhetoric. It is a sad but not surprising show of human nature
that this should be so. But it need not be so. Each of us, whether in
provincial government or private citizens must judge the provisions of
our constitution by whether they serve the interests of Canada as a
whole. Ontario should be pushing for a stronger national government,
offering to give up jurisdiction to Parliament and leading the other
provinces to do the same.

The
resolution before you will gravely injure our country. I urge you to
reject it. If you do not, the damage done may be irreversible and, in
the long, run fatal.